A law blog addressing the foci of 3 intrepid law geeks, specializing in their respective fields of knowledge management, internet marketing and library sciences, melding together to form the Dynamic Trio.

Pages

8/21/13

Awhile back I posted on how I thought lawyers using Gmail (or any other free email service like that) constituted a waiving of privilege. My argument was that agreeing to share privileged client communications under "a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence" with a third party was on its face - a privilege waiver.

Not everyone agreed with me - the original post had 25 comments. And there were follow up posts in response to a broader conversation. As part of that conversation, someone noted how the NY Bar had issued an ethics opinion on the subject disagreeing with my position. The opinion basically stated email was like mail and thus one has an expectation of privacy.

"We concluded based on developing experience that there is a reasonable expectation that e-mails will be as private as other forms of telecommunication."

Well ... the NY Bar should have asked Google its opinion about expectations of privacy when using Gmail. In a recent court filing, Google made it quite clear what that expectation is:

"Indeed, ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’”

So I reiterate my claim, only more boldly, leveraging Google's own statement: If you are a lawyer using Gmail for privileged client communications, they are no longer privileged.

7
comments:

Actually, Google IS the third party. Google's brief, which I analyzed in a recent post, likened Google to a mail carrier (while distinguishing themselves too, talking out of both sides). The truly off-putting part of Google's position is that they claim anyone using any email, basically at all, has no expectation of privacy. http://www.thecyberadvocate.com/2013/08/14/no-expectation-of-privacy/

Brian, I see your point later in the brief. The quote is a little murky because of the "recipient's assistant" example that they used in the sentence immediately before the quote, but after reading it more carefully I agree with you.

However, after reading it more closely to clarify that point, it seems that Google's argument about no expectation of privacy only applies to the "Non-Gmail Plaintiffs" as senders, not the Gmail user who is the recipient. Going back to the original post here, wouldn't that mean that lawyers who send client information from Gmail would not be waiving anything?

We're building SquadMail which works like "Dropbox for email" and lets you share synchronized gmail labels with others. SquadMail doesn't store any data, but only transmits it from one email server to the other but we do all of our synchronization with a very strong encryption and host in German data centers exclusively which has been very important to our users.

Clarifications: If privileged information is exposed to a third party, privilege is waived. (Exceptions are when it is exposed as part of a litigation to a provider (i.e. e-discovery vendor) under a confidentiality agreement.)

The Terms of Service (TOS) with Google to use their services require that the users expose content to Google, such that Google acquires publication rights. Google is not saying they share your email content with others (except in certain circumstances). But Google is saying you share it with them. The analogy of an "assistant" opening a letter is not the best, since Google is not an employee of a law firm but instead a third party. Per the link Ann Lee provides, "all Gmail users have signed the terms of service and have therefore already agreed to have their emails read."

This is exposing content to a third party outside of any need related to a litigation or other legitimate legal need. Lawyers who are too cheap to pay for an email service and agree to the TOS of Google are agreeing to expose their clients' communications to Google in exchange for a free email account.

Putting this into a paper analogy - if a lawyer agreed to share all client communications with FedEx for free delivery services, would that waive privilege?

Technology is changing the way law is practiced. With this comes a whole host of new problems, including privacy. I think that what is going to have to happen is that the State Bars are going to have to reevaluate many of the old school rules that worked great when mail was a tangible thing but not so great in a virtual world. They have the same problem coming with advertising regulation.